A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Sunday, 9 December 2012

Dancing Around Genocide?

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Kenneth Roth, the director of Human
Rights Watch, has been the victim of a very nasty attack by anti-Muslim
extremists who charge that he is ‘dancing around genocide’ by refusing to
condemn Iran and its president for incitement to genocide. David Feith savages
Ken Roth in the Wall Street Journal in an article that speaks of ‘a bitter
behind-the-scenes battle [within Human Rights Watch] over Iran's calls to
annihilate Israel'.

(David Feith shouldn’t be confused with
Douglas Feith, who was the under-secretary of state in the first George W. Bush
administration, a sabre-rattler for war with Iran, an as yet unpunished director of the Abu Ghraib torture prison, and a neo-conservative
ideologist who thinks ‘terrorists’ aren’t entitled to protection of the Geneva
Conventions. David is the son of Douglas.)

Ken Roth is correct, and he is very
wisely rejecting such demagogic appeals. Iran and its president have said many
outrageous things. With respect to Israel, the common denominator of
Ahmedinijad’s comments on the subject, when read in their context and bearing
in mind the vagaries of translation, certainly amount to a call for the elimination
or destruction of the state of Israel. But this is not at all the same thing as
calling for the extermination of the people of Israel, or the Jewish population
of Israel. A reasonable reading of Ahmedinijad's statements cannot support such a conclusion.

There is nothing unprecedented about
calling for the destruction or elimination of a State. Decades ago, Cold
Warriors wanted to destroy the Soviet Union and Yugoslavia (they succeeded). In
Ireland, many republicans want to destroy the ‘state’ of Northern Ireland.
Presumably advocates of the ‘one state solution’ for the Israel-Palestine
conflict are also calling for the annihilation of Israel, in the sense that the
result will be a secular state with a potentially Arab majority. These are
political views, and whether we disagree with them or not, they have a right to
be expressed.

Those who charge Ahmedinijad with
inciting genocide, including Feith, generally muddle their claim with
provocative references to Iran’s possible nuclear capacity. They equate the
alleged efforts of Iran to obtain nuclear weapons with an intent to perpetrate
genocide against Jews in Israel.

This is a problematic charge for a
couple of reasons. First, were Iran to get nuclear weapons, it would not be the
first in the region to do so. It very arguably has a claim to require them for
defensive purposes, given that its enemies already have nuclear weapons. Why won't Feith call for nuclear disarmament in the Middle East region as a means
to prevent genocide?

Second, it doesn’t require very much
intelligence to understand that Iran is unlikely to be able to build a nuclear
weapon that can distinguish between Jews and Arabs on the territories of Israel
and Palestine. Use of nuclear weapons there would be likely to kill as many
Palestinians as it would Jewish Israelis. Does any sane, rational person really
think that mass destruction of the inhabitants of Israel and Palestine using an indiscriminate weapon can be
Iran’s objective?

The attacks on Ken Roth and Human Rights
Watch feed off those who are genuinely concerned about the possibility of
genocide taking place somewhere in the world. Iran gets presented as yet
another example of a mass atrocity waiting to happen, another Rwanda. That is a
huge distortion that is pumped up by right-wing ideologues with an anti-Muslim
agenda who think that the two greatest genocidal threats in the world just
happen to be Muslim states in the Middle East that don’t happen to like Israel,
namely Sudan and Iran. These people don’t get nearly as excited about threats
of mass atrocity in places like Burma and Sri Lanka.

Some amateurish international lawyers
are also engaged in the anti-Ahmedinijad campaign. They invoke article 3(c) of
the 1948 Convention for the Prevention and Punishment of the Crime of Genocide
and link it to article 9 of the same treaty in a proposal to bring the case
before the International Court of Justice. Politicians have been sucked into
endorsing this notion. In the last American election, Mitt Romney wasn’t smart
enough to see the flaws in such a position, and lent his voice to the campaign. Kenneth Rudd in Australia did the same
thing a few years earlier. Perhaps this got them a few votes (though not enough) which
was no doubt the purpose of the preposterous exercise.

Article 3(c) makes punishable ‘direct
and public incitement to commit genocide’. It is one of the so-called inchoate
acts of genocide, in that it does not require that anyone is actually incited
or that genocide itself actually take place for the incitement crime to be
perpetrated. The reason for the words ‘direct and public’ is to distinguish
this from incitement in general, which would be a form of complicity in
genocide if there was evidence that people were actually incited and that they
actually carried out genocide.

There have been some convictions for
‘direct and public incitement to commit genocide’ at the International Criminal
Tribunal for Rwanda, but they present a confused legal message because there is
no doubt that in Rwanda individuals were actually incited and genocide took
place. I know of no example anywhere where someone has been charged and convicted of
‘direct and public incitement to commit genocide’ in the absence of evidence
that people were incited and that those people carried out genocide.

When they implement the provisions of
the Genocide Convention (and the Rome Statute, which is to the same effect),
most states indicate an understanding that ‘direct and public incitement’ is
not a crime on nearly the same level or of the same gravity as genocide itself.
For example, in the United States, the so-called Proxmire Act provides a fine
of $500,000 and a maximum sentence of five years for the crime of direct and
public incitement. And that is assuming it would survive constitutional
scrutiny under the First Amendment were a prosecution ever to take place.

It should be pretty obvious that
cavalier charges of ‘direct and public incitement to commit genocide’ have the
potential to encroach upon freedom of expression. Indeed, isn’t that the real
purpose behind the attacks on Ahmedinijad and, for that matter, Ken Roth and
Human Rights Watch by Feith and the anti-Muslim chorus?

They want Ahmedinijad to acknowledge
Israel as a State, and to back off its alleged efforts to obtain nuclear
weapons. Incidentally, just as Ahmedinijad wants to see the end of Israel as a state, they
too want to see the destruction and annihilation of the ‘Islamic Republic of
Iran’. And they also want to muzzle Ken Roth and Human Rights Watch because of
the courageous positions they have taken on human rights violations perpetrated
by Israel and its armed forces against the people of Palestine.

No comments:

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is a Lecturer in Law in Bangor University, UK, where she is also Director of Teaching and Learning and Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (PhD). Her research focuses on fair trial rights, international criminal procedure and international criminal law. Her first monograph, Fairness in International Criminal Trials, will be published by OUP in 2015.

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.